Smt. Kausiya Dheemer vs State Of Madhya Pradesh And Ors

The aforesaid Original Application came to be registered before this Tribunal after the Original Writ Petition No. 8708/2009 filed by the Applicant, Smt Kausiya Dheemer by way of PIL, came to be transferred by the Hon'ble High Court of Madhya Pradesh, vide order dtd. 16th January, 2014 to this Tribunal. After receipt of the Writ Petition and registration as an Original Application, the matter was listed on 10th March, 2014 on which date the Applicant appeared through the Counsel. Shri Sachin K. Verma, Learned Counsel for the Respondent No. 1, 4 & 5 and Shri Shivendu Joshi, Learned Counsel for the Respondent No. 2 & 3 appeared before the Tribunal. Having gone through the petition and the record of the proceedings of the Hon'ble High Court this Tribunal considered it appropriate to direct the Learned Counsel for the Respondent No. 2 & 3, MP State Pollution Control Board (in short MPPCB) to file an affidavit of their responsible officer on the following points.

I. The distance as it exists between the area of the stone crushing unit and the nearest human habitation.

II. Whether the stone crushing unit, in dispute, has a valid consent to operate in existence.

III. Whether the stone crushing unit is under operation as of today.

In the Writ Petition the Applicant has made the following prayer :

i. That the Stone Crushing operation being illegal, be ordered to be immediately closed.

ii. Illegal blasting operation should be immediately stopped.

iii. The letter of granting consent dtd. 04.06.2009 be quashed and set aside as also the letter issued by the Collector dtd. 26.7.2009.

iv. That the Respondent No. 1 & 2 be directed to take legal and penal action against the Respondent No. 6 for operating illegal stone crusher since 1984 without license and carrying out dynamite blasting, since 2002.

The principal ground for challenging the operation of the mines in the stone crushing unit is that the aforesaid crusher is located within a distance of 500 mtrs. from the inhabitated area and therefore the consent has been granted to the Respondent No. 6 in violation of the guidelines. As far as the blasting being carried out in the mines is concerned, the allegation is that the Respondent has been carrying out illegal mining and without permission in that behalf.

Notices had been issued to the Respondents by the Hon'ble High Court and the Respondents submitted their response before the Hon'ble High Court. As has been mentioned above, the Writ Petition was filed before the Hon'ble High Court in August, 2009. On 08.12.2009 the Hon'ble High Court directed for an enquiry into the matter asking as to what is the distance of the stone crusher from the residential area and whether the blasting operations have been conducted or are being conducted by the Respondent No. 6 in the mining area. The inspection was carried out in terms of the aforesaid orders issued by the Hon'ble High Court and the report dtd. 26.12.2009 came to be filed, after the inspection conducted by a team of 3 officers i.e. District Collector, Tikamgarh, Sub Divisional Officer, Jatara and the Mining Officer, Tikamgarh. The findings of the aforesaid enquiry committee inter alia are reproduced hereinunder : -

(1) That the land bearing Khasra No.1136 is 11.29 hectares in area out of which 1 hectare has been given for mining lease to Shri Nishant Sahu, Respondent No. 6 and he has been sanctioned mining lease over the same. It was also found that on the adjoining land bearing Khasra No. 1118/6/2 stone crusher unit has been installed and the aforesaid land is the Khatedar land of Respondent No. 6.

(2) The mining lease area is at a distance of minimum of 1160 mtrs. from the notified inhabited area of Village Bairwar Khas. The stone crusher is at a distance of 1318 mtrs. from the Village Bairwar Khas.

(3) The stone crusher is at a distance of 230 mtrs from the Mauranipur, Tikamgarh. The stone crusher was also found to be at a distance of 496 mtrs from the notified inhabited area of Gandhigram and the land in question was found 615 mtrs. from the notified inhabited area of Gandhigram

(4) It was found that the dwelling unit of Smt. Kausiya Dheemer, Applicant herein, is located on Khasra No. 1118/3/Kh/2 which is at a distance of 350 mtrs. from the central point of the mining lease area in question with a minimum distance of 250 mtr. from the mine.

(5) The stone crusher is located at a distance of 1080 mtrs. from the house of Shri Kishan Ahirwar which is situated in agricultural land bearing Khasra No. 1118/3/Kh/2 and the aforesaid house is at a distance of 405 mtrs. from the centre of the mining area and 365 mtrs. from the nearest point of the mining area.

(6) It was also found that the house of one, Shri Mithu Tanay Gandhai Ahirwar is located in his agricultural land which is situated at a distance of 175 mtrs. from the stone crusher.

(7) Three other houses were also said to be situated in the vicinity of this house.

(8) On inspection, no blasting was found to be carried out and the labour was found engaged in breaking the stone manually".

The aforesaid report was submitted before the Hon'ble High Court. It appears that before the Hon'ble High Court an oral request was made by way of objections to the report dtd. 26.12.2009 on which a direction was issued through Registrar (J-I) for recording the statement of the Applicant. Learned Registrar on 27.02.2012, recorded the statement of the Applicant. The gist of the aforesaid statement as recorded, is as follows : -

She submits that she was the Panch in the Village for a period of 2 years around 2 years ago now presently the Sarpanch is Dangi. It appeared that she was not aware of the number of houses or the approximate strength of the Village regarding which she has filed the petition alleging environmental pollution.

She also submits that she stays in the "Haar" of the Village whereas the Village Basti is at a distance of more than a mile and is accessible by cycle. She has categorically stated that the place of residence in the "Haar" is called Gandhigram while the Basti is at Berwa. Regarding the no. of houses at Gandhigram she states that there are 20-25 houses and then later after some reminiscence states that there may be up to 100 houses at Gandhigram.

Regarding the location of the stone crusher she submits that it is situated near the "Haar" while the actual basti of village Berwa is more than a mile from the stone crusher. The "Haar" is also called Gandhigram and the major population of village stays at Berwa. She also submits that the basti of village Berwa is at quite some distance from the stone crusher. She did not appear to be familiar with the environmental effect of the stone crusher but has stated that there was some quarrels with the crusher owner when a stone hit one of the residents.

She submits that she has not suffered from any ailments pertaining to cough and cold due to fly ash but also states that "Dhul to Udta hai". Regarding other persons she states that they may be affected but she has no inkling of affect to other persons. She states that the purpose of filing the petition is that she is aggrieved by stones which emanate from the machine and hit her kachcha house in the "Haar". She does not appear to know the connotation of PIL and categorically states that other persons have said "Rehne do". She has elaborated that she has affixed her thumb impression for purpose of filing this petition being aggrieved by stones which primarily cause damage to her house while others may be negligibly affected.

Regarding the effect of productivity of her agricultural lands she submits that around 10 years previously the output of wheat was around 10 'bora' while last year it was about 50 'bora' and in the same breath she adds that her agriculture lands are being affected by stone crusher.

We further find that as has been noticed herein above, the two principal contentions which were raised before the Hon'ble High Court are with regard to the alleged location of the stone crusher within a distance of 500 mtrs. from the inhabited area in violation of the guidelines formulated by the MPPCB and the other is with regard to illegal and unauthorised blasting being carried out in the mines. It also appears that during the course of hearing before the Hon'ble High Court same grievance was raised with regard to pollution as a result of the running of the stone crusher and for the aforesaid purpose an inspection was ordered to be carried out and the report dtd. 20.03.2012 was produced before the Hon'ble High Court by the MPPCB as mentioned in the order sheet dtd. 04.04.2012. In the aforesaid order sheet dtd. 04.04.2012 it has been recorded as follows:

Heard on I.A. No. 2950/2012. The Public interest litigation was filed on the ground that the stone crusher of the Respondent No. 6 was located within a distance of 500 mtrs. of inhabited site which is not permissible in view of the guidelines formulated by the M.P. Pollution Control Board (Annexure-P/16).

We have examined the aforesaid guidelines, particularly clause (3) thereof as well as the subsequent order of the Supreme Court, dtd. 25.09.2001 passed in SLP (C) No. 1356 of 1998. It appears that the direction of the Supreme Court to the effect that stone crusher should be situate at a distance of 500 meters from the inhabited site was issued in the light of statutory rules prevalent in the State of Tamil Nadu. The aforesaid direction has not been issued by the Supreme Court on the basis of an independent assessment of range of pollution. Clause (3) of the guidelines issued by the M.P. Pollution Control Board contained in Annexure P/16 is based on the order passed by the Supreme Court and in fact, appears to be based on min-interpretation of the directions issued by the Supreme Court. The guidelines regarding the distance restriction are not based upon any independent assessment of the range of pollution of stone crushers.

In fact, the last inspection report filed by the M.P. Pollution Control Board, which is dated 20.03.2012, itself points out that the pollution from the stone crusher is not beyond the permissible limit and it does not reach to the inhabited area.

In view of these circumstances, we direct the M.P. Pollution Control Board to consider the application of the Respondent No. 6 for grant of consent for operation of the stone crusher without being influenced by clause (3) of the guidelines (Annexure-P/16).

This exercise will be done within a period of two weeks from the date on which certified copy of this order is presented before the Regional Officer of the M.P. Pollution Control Board. The petitioner is allowed two weeks time to furnish materials regarding the pollution being caused either from the stone crusher or from quarrying to the inhabited site. It is made clear that if this Court is satisfied that the pollution is health-hazard to the inhabited area or guillotine the inhabited site, it may still injunct the Respondent No.6 from operating the stone crusher or quarry, irrespective of the consent of the Pollution Control Board.

The above is the last effective order passed by the Hon'ble High Court before transferring the case to this Tribunal vide it's order dtd. 16.01.2014.

As already stated in Para 1 (supra) we have directed the Counsel for the MPPCB to file specific affidavit in our order dtd. 10.03.2014. In response to our query no. 2 whether the stone crushing unit in dispute has valid consent to operate, it has been submitted by the MPPCB in their affidavit and compliance report filed on 15.04.2014, that the stone crushing unit has valid consent to operate upto 30.06.2014. In the light of the above and in the light of the order passed by the Hon'ble High Court on 04.04.2012, we find that the Hon'ble High Court having itself interpreted the mandate of guidelines contained in Annexure P/16 of the MPPCB with regard to the distance from the inhabited area and having issued directions to the MPPCB to consider the application for grant of consent notwithstanding the guidelines and distinguishing the Supreme Court order as that was in the case of Tamil Nadu where statutory rules were in force as distinguished from the State of M.P. and said consent having been granted with validity upto 30.06.2014, we find that the stone crushing unit of the Respondent No.6 is operating under the valid consent issued by the MPPCB and no fault can be found against the Respondent No.6 on that count.

As regards the question raised in the Writ Petition pertaining to the distance of stone crusher from the inhabited areas quoted herein above, vide the aforesaid order dtd. 04.04.2012, the Hon'ble High Court directed the MPPCB to consider the application of Respondent No. 6 for granting the consent to operate the stone crushing unit without being influenced by the clause (3) of the guidelines (Annexure P/16). In that view of the matter strict compliance with regard to the proximity of the crusher to be located in less than 500 mtrs. distance from the inhabited area was not applicable as held by the Hon'ble High Court.

Be that as it may. Shri Shivendu Joshi, Learned Counsel for the MPPCB submitted that during the site inspection which was carried out in December, 2009 and in the report of the committee dtd. 26.12.2009 it has been specifically noted that the distance of the mine is 1380 mtrs. from the "notified inhabited area" and that of the stone crushing unit is 1160 mtrs. from the "notified area" of the Bairwar Village. Based upon the above, it was submitted that every dwelling unit individually built beyond the notified area cannot be taken into account for determining the distance for awarding consent for establishing and operating the stone crushing units and in larger public interest distance from the "notified area" alone has to be taken into consideration.

The Learned Counsel for the Applicant today submitted objections to the compliance report submitted by the MPPCB and invited our attention to the fact that it has come in the report that there were dwelling units situated at less than 500 mtrs. distance. He also submitted that the report did not give the correct position and he had several objections to the same. As far as the aforesaid objections which have been submitted by the Applicant are concerned, we find that the document of March, 2010 which is again a joint inspection report in response to Point No. 3, it has categorically been stated that on 26.12.2009 during the inspection, Applicant and her representative one, Smt. Shubra Devi have left the inspection site on one pretext or the other and not returned as a result of which the inspection had to be carried out in their absence. We find that there is no explanation submitted by the Applicant against the contention of the MPPCB that while implementing the guidelines with regard to minimum distance, the distance is being taken from the boundary of the 'notified inhabitated area' (GHOSHIT ABADI KSHETRA). While we have already dealt with the aforesaid issue that the Hon'ble High Court itself had clarified that while considering the application for grant of consent to the Respondent No. 6 the MPPCB was not influenced by the guidelines no.3 as directed by Hon'ble High Court in the order dtd. 04.03.2012. Be that as it may, since the distance of the mine and the crushing unit is more than prescribed distance from the boundary of the notified in habitat area, we are of the view that the consent which was granted to the Applicant, post the order dtd. 04.04.2012, cannot be found to be contrary to the provision of the guidelines as contended by the Applicant.

As regards Exh.P-2 prayer made by the Applicant with regard to the earlier letters Exh.P-61 dtd. 04.06.2009 of the grant of consent by the MPPCB and the letter of the Collector dtd. 26.07.2009 Annexure P-64 have become infructuous in view of the subsequent order dtd. 04.04.2012. Both these above prayers are accordingly rejected.

As regards the question of illegal blasting it has already come to the notice of the Hon'ble High Court that no blasting was being carried out in the mine by the Respondent No. 6 and this fact has also been found in the two inspections which were carried out by the joint inspection committees constituted under the orders of the Hon'ble High Court. The aforesaid prayer made by the Applicant has not been substantiated and accordingly the aforesaid prayer is also refused and rejected.

With regard to question of pollution being caused in the area and the compliance report which has been submitted before us states that adequate precautions have been taken by the Respondent No. 6 as revealed in the inspection which was carried out on 09.04.2014. As per the aforesaid inspection report vibrating screen was duly covered with hood and for purposes of sucking dust, 5 HP I.D Fan has also been installed and the dust sucked was collected in water spray chamber. The water spray chamber is made of concrete wherein two water sprinklers are installed. A boundary wall of 100 mtrs. long and 15ft high with a 15 ft gate in the East direction for conveyance of trucks has also been built along the stone crushing unit. It has also been found that tree plantation has been carried out at the site of stone crushing unit in sufficient numbers.

While at this stage there is no material before us to show that any air pollution is being caused or pollution of any other kind by the stone crushing unit i.e the matter to be taken into consideration by the MPPCB since we have been notified that the consent to operate of the Respondent No. 6 is due to expire by 30.06.2014 and would be liable to renewed thereafter. Matters pertaining to pollution and the other factors relevant for the aforesaid purposes of grant of renewal shall be taken into consideration by the MPPCB authorities in the event application for renewal of the application is submitted before them. If at any point of time, the MPPCB finds that there is violation of any of the condition or any additional conditions are required to be imposed for renewing the consent to the Respondent No. 6 for operating the stone crushing unit they would be free to do so in public interest.

So far as the Mining Lease is concerned we may only add that the Mining Department shall take into consideration the question with regard to renewal of the mining lease and operation of the mines in pursuance of the valid mining lease. The Respondent No.6 based upon the conditions of the mining lease and in case there is any violation or breach of the mining lease conditions the Mining Officer shall be free to take action in accordance with law against the Respondent No. 6.

In the light of the above, this Original Application No.43/2014 accordingly stands dismissed with no order as to costs.